ANIMAL LAW
IN
AND
NEVADA: ALL BARK
NO BITE
Kathleen Wilde*
“[O]f all the creatures that were made [man] is the most detestable. Of the entire
brood he is the only one—the solitary one—that possesses malice. . . . He is the only
creature that inflicts pain for sport, knowing it to be pain.1 The fact that man knows
right from wrong proves his intellectual superiority to the other creatures; but the
fact that he can do wrong proves his moral inferiority to any creature that cannot.” 2
—Mark Twain
I. INTRODUCTION
The law struggles with defining household pets consistently.3 As one
author described them, pets are “[s]omewhere [b]etween a [c]hild and
[c]hattel.”4 Nevada, like all other states, currently defines pets as personal
property,5 which, essentially, means that a dog is no different from a toaster.
However, this simplistic categorization fails to recognize that pets cannot be
valued the same way as inanimate objects.6 Unlike toasters, household pets are
living creatures, with independent interests and the capacity to form relationships with their human companions.7 Likewise, human beings are far better at
developing bonds with domestic animals than with inanimate objects.8 By fail* J.D. Candidate, May 2011, William S. Boyd School of Law. The author would like to
express her gratitude to the editors and faculty advisors, who provided excellent suggestions,
and to her family—both human and animal—for their continued love and support.
1 19 MARK TWAIN, The Character of Man, in The Works of Mark Twain 60, 60 (Paul
Baender ed., 1973).
2 19 MARK TWAIN, What is Man?, in THE WORKS OF MARK TWAIN, supra note 1, at 124,
198-99.
3 Although I personally am uncomfortable with the notion of “pets” and prefer terms like
non-human family members, I use the traditional term for the sake of convenience.
4 T. Christopher Wharton, Study Note, Fighting Like Cats and Dogs: The Rising Number of
Custody Battles Over the Family Pet, 10 J.L. & FAM. STUD. 433, 434 (2008).
5 Peter Barton & Frances Hill, How Much Will You Receive in Damages from the Negligent
or Intentional Killing of Your Pet Dog or Cat?, 34 N.Y.L. SCH. L. REV. 411, 411 (1989).
6 See Geordie Duckler, The Economic Value of Companion Animals: A Legal and Anthropological Argument for Special Valuation, 8 ANIMAL L. 199, 217 (2002) (discussing the
literal absence of litigation on the value of jackets and snow cones, even though they are also
categorized as personal property).
7 Lauren Magnotti, Note, Pawing Open the Courthouse Door: Why Animals’ Interests
Should Matter When Courts Grant Standing, 80 ST. JOHN’S L. REV. 455, 457-58 (2006)
(“Animals are living beings capable of feeling physical pain, experiencing varying degrees
of rational thought, and forming seemingly emotional attachments.”).
8 Rabideau v. City of Racine, 627 N.W.2d 795, 798 (Wis. 2001) (“Labeling a dog ‘property’
fails to describe the value human beings place upon the companionship that they enjoy with
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ing to recognize the unique qualities of pets, Nevada law harms both pets and
those who care for them.
This Note proposes changes to Nevada law by evaluating the importance
of legal measures to protect pets.9 Part I explains why everyone, not just pet
guardians,10 should be concerned about the treatment of pets. Part II describes
and evaluates current Nevada animal law. Part III examines Nevada’s and
other states’ legal successes and failures in addressing protection of pets. Part
IV proposes several goals for the Nevada legislature that will not break the
budget or overwhelm the judicial system. Because this Note focuses on
Nevada, it will provide a working guide for state legislators in amending and
proposing laws.
II. WHY CARE ABOUT PETS?
A. Public Attitudes Toward Animal Cruelty
The American populace generally responds strongly to animal mistreatment. For example, in 2000, when a motorist killed a small dog, named Leo, in
an act of road rage, people from across the country raised $120,000 to find the
culprit.11 After the judge sentenced the aggressor to three years imprisonment
for animal cruelty, spectators in the courtroom applauded.12 More recently, in
2007, a majority of football fans supported the imprisonment of Michael Vick
for his involvement in dog fighting13 and believed the National Football
League commissioner should have prohibited his return to the NFL.14 Even
after Vick’s release from prison and return to the league in 2009, some individuals continued to protest his reinstatement.15
a dog.”). Although the Rabideau case specifically discussed dogs, the same reasoning could
apply to other types of pets.
9 Although I recognize the importance of protecting animals in other contexts, this Note
focuses on household pets because of their unique companionship qualities. In the words of
Dr. Duckler, “[W]e tend to treat the value of our meals and the value of our friends very
differently.” Duckler, supra note 6, at 199.
10 I use the term pet guardian rather than the conventional pet owner to emphasize that pets
are not objects that are owned, but living beings that require care. See discussion infra Part
V.A.1.
11 See Elizabeth Paek, Recent Development, Fido Seeks Full Membership in the Family:
Dismantling the Property Classification of Companion Animals by Statute, 25 U. HAW. L.
REV. 481, 481-82 (2003) (noting that the reward donated on Leo’s behalf exceeded the average donated for suspected child molesters or rapists).
12 Ann Hartwell Britton, Bones of Contention: Custody of Family Pets, 20 J. AM. ACAD.
MATRIM. L. 1, 34 (2006).
13 Specifically, fifty-one percent of fans believed Vick deserved a short prison sentence and
thirty-five percent believed Vick deserved a long prison sentence. Jeffrey M. Jones, Most
NFL Fans Say Vick Shouldn’t Be Allowed to Play Again, GALLUP (Aug. 29, 2007), http://
www.gallup.com/poll/28540/Majority-NFL-Fans-Say-Vick-Should-Allowed-Play-Again.
aspx.
14 Fifty-eight percent of NFL fans surveyed believed Vick should not have been allowed to
return to the NFL and seventy-five percent did not want Vick to play for the team they
rooted for. Id.
15 Mark Maske, Amid Few Protests, Vick Makes His Debut, WASH. POST, Aug. 28, 2009, at
D1.
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Strong public sentiment about animals shows that Americans generally do
not think of pets as just another form of property.16 Although there is no single
explanation for why people love pets, it is often suggested that people bond
well with animals because they are anthropomorphized17 as having the best of
human traits without the worst of them.18 Even many individuals who do not
have pets in their family readily acknowledge that animals are just like humans
in many important ways.19 It is also probable that strong beliefs about protecting animals stem from the prevalence of pet guardianship20 and widespread
recognition that “animals are sentient and emotive beings.”21 Similarly, animals play a wide variety of roles in human lives, ranging from playmates and
friends to helpers and protectors.22
B. The Devotion of Pet Guardians to their Pets
The majority of Americans have at least one pet in their family. As of
September 2010, there were 71.4 million pet-owning homes in the United
States.23 This means approximately sixty-two percent of the United States population has one or more pets.24 Compared with 2000, pet guardianship
increased nearly fifteen percent.25
Pet guardians are willing to invest time, money, and other resources into
their pets as emotional investments that rarely net financial gain. The American Pet Products Association (APPA) survey estimates that, in 2010, pet guardians will spend $47.7 billion on their pets.26 The great deal of money spent on
pets has led some scholars to question what pets give their guardians in
return.27 As one court explained, “[A pet’s] worth is not primarily financial,
but emotional; its value derives from the animal’s relationship with its human
16
Britton, supra note 12, at 34.
Anthropomorphized means the giving of human characteristics to non-human beings.
MERRIAM-WEBSTER’S COLLEGIATE DICTIONARY 53 (11th ed. 2003).
18 Bueckner v. Hamel, 886 S.W.2d 368, 377 (Tex. App. 1994) (Andell, J., concurring)
(“Many people who love and admire dogs as family members do so because of the traits that
dogs often embody. These represent some of the best of human traits, including loyalty,
trust, courage, playfulness, and love. . . . At the same time, dogs typically lack the worst
human traits . . . .”).
19 Debra Squires-Lee, Note, In Defense of Floyd: Appropriately Valuing Companion Animals in Tort, 70 N.Y.U. L. REV. 1059, 1059-60 (1995).
20 See infra Part II.B.
21 Paek, supra note 11, at 488.
22 Margit Livingston, The Calculus of Animal Valuation: Crafting a Viable Remedy, 82
NEB. L. REV. 783, 806-07 (2004).
23 Industry Statistics & Trends, AM. PET PRODUCTS ASS’N, http://americanpetproducts.org/
press_industrytrends.asp (last visited Jan. 5, 2011) [hereinafter APPA Survey].
24 Id.
25 See Lynn A. Epstein, Resolving Confusion in Pet Owner Tort Cases: Recognizing Pets’
Anthropomorphic Qualities Under a Property Classification, 26 S. ILL. U. L.J. 31, 31 (2001)
(noting sixty-one million pet-owning households in the United States).
26 APPA Survey, supra note 23.
27 See generally John Archer, Why Do People Love Their Pets?, 18 EVOLUTION & HUM.
BEHAV. 237 (1997) (discussing pets as a form of social parasite because human beings spend
resources on pets that would ordinarily go toward human young, although they fail to receive
any evolutionary advantage in return).
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companions.”28 A recent survey found that eighty-six percent of pet guardians
consider their pets a member of the family and fifty percent consider their pets
comparable to human family members.29 Pet guardians also largely believe
their pets are able to understand human emotions and are receptive to communication.30 Furthermore, one study found that grief responses for the loss of a
pet are comparable to the grief experienced following the loss of a spouse,
parent, or child.31
The depth of human emotion for animals has been documented strongly in
recent years. In a fascinating study of war-torn Lebanon, researchers found that
fifty-six percent of pet guardians surveyed remained in dangerous areas
because of their pets, fifty-three percent took their animals with them to bomb
shelters, and twenty-seven percent of guardians sacrificed their own food consumption in order to feed their pets.32 Similarly, during evacuations for Hurricane Katrina in 2005, forty-four percent of people who refused to evacuate did
so because of concern for their pets.33 Thus, even in emergency situations, pet
guardians give significant consideration for their pets’ well-being.
C. Religious Considerations About Pets
For many people, religious doctrine dictates what is morally right in all
aspects of life. Because religiosity regularly influences legal decision makers
and their constituents, understanding the ways in which different religions
interpret the role of animals provides insight into an additional reason why it is
important to protect animals.
Several religions recognize that animals deserve respect and lives that are
free from suffering. For example, Buddhist teachings hold that all life forms
are interrelated, and, as such, a person who harms an animal also harms himself
or herself and all creation.34 Similarly, because Hindus believe that souls are
reincarnated and that all creation is unified, they also believe that pets must be
cared for particularly well.35
A variety of naturalist religions also include core beliefs about animals.
For example, many Pagans and Native American tribes believe that animals
have valuable symbolism and energy that can inspire a broad range of spells,
28
Morgan v. Kroupa, 702 A.2d 630, 633 (Vt. 1997).
GfK Roper Pub. Affairs & Media, The AP-Petside.com Poll, GFK (May 28, 2009-June 1,
2009), http://www.ap-gfkpoll.com/pdf/AP-GfK_Petside_Topline.pdf.
30 Archer, supra note 27, at 251-52 (Seventy-nine percent of pet guardians talked to their
pet as if it were a person and eighty percent believed their pet was sensitive to their feelings).
31 William C. Root, Note, “Man’s Best Friend”: Property or Family Member? An Examination of the Legal Classification of Companion Animals and Its Impact on Damages Recoverable for Their Wrongful Death or Injury, 47 VILL. L. REV. 423, 440 (2002).
32 Squires-Lee, supra note 19, at 1066.
33 Megan McNabb, Pets in the Eye of the Storm: Hurricane Katrina Floods the Courts with
Pet Custody Disputes, 14 ANIMAL L. 71, 103 (2007).
34 Rebecca J. Huss, Valuing Man’s and Woman’s Best Friend: The Moral and Legal Status
of Companion Animals, 86 MARQ. L. REV. 47, 63 (2002).
35 Id. at 58.
29
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help connect with sacred wisdom, or promote spirituality.36 Notably, many
practicing Pagans are animals lovers and might be vegetarians out of respect for
nature.37 Similarly, some Native American tribes, such as the Choctaw, historically practiced vegetarianism and continue to incorporate meatless dishes into
important celebrations.38 For some tribes, creation stories describe people as
naturally vegetarian, with beginnings in a kind of “Garden of Eden” where
humans, plants, and animals lived in “equality and mutual helpfulness,” and
where the needs of all were met without killing one another.39 Interestingly,
the Christian creation story diverges significantly from the vegetarian “Garden
of Eden.”40 Christian thinkers fall into two opposing belief categories regarding the human duty to care for and respect animals.41 The first theory, stewardship, teaches that human beings are to be loving caretakers of all of God’s
creation, in the same way God Himself cared for His creation.42 Because God
created animals with His own hand, on the same day He created humans, the
logic goes that humans and animals are both products of the divine creation.43
The second approach, dominion theory, focuses on a later verse of Genesis,
which instructs that God created man to rule over other forms of animals.44
People who support the dominion theory tend to believe humans are superior to
other animals because God created human beings in His own image and only
humans must focus on the preservation of their immortal souls.45
D. Philosophical Considerations About Pets
Philosophers and theorists have long contemplated how human beings
should interact with animals. As far back as 500 BC, the Greek philosopher
Pythagoras condemned all cruelty to animals.46 He practiced vegetarianism
and felt it was immoral to harm animals: “As long as man continues to be the
36 What is a Witchcraft and Wicca Symbol?, WICCA SPIRITUALITY, http://www.wicca-spirituality.com/wicca-symbol.html (last visited Jan. 5, 2011) (citing JAMIE SAMS, Medicine
Cards: The Discovery of Power Through the Ways of Animals (1999)).
37 Tara M. Clapper, The Relationship Between Paganism and Veganism, ASSOCIATED CONTENT (Mar. 7, 2007), http://www.associatedcontent.com/article/162487/the_relationship_
between_paganism_and.html?cat=22.
38 History of Vegetarianism: Native Americans and Vegetarianism, INT’L VEGETARIAN
UNION, http://www.ivu.org/history/native_americans.html (last updated Apr. 18, 2001).
39 Id.
40 See generally Genesis 1-2 (Oxford Study Bible).
41 TOM REGAN, DEFENDING ANIMAL RIGHTS 7 (University of Chicago Press 2001).
42 Id. at 8.
43 Id. (citing Genesis 1:24-26 (Oxford Study Bible)) (“God said, ‘Let the earth bring forth
living creatures, according to their various kinds: cattle, creeping things, and wild animals’
. . . . Then God said, ‘Let us make human beings . . . .’ ”).
44 Id. at 7; see also Genesis 1:26 (Oxford Study Bible) (“Then God said, ‘Let us make
human beings in our image, after our likeness, to have dominion over the fish in the sea, the
birds of the air, the cattle, all wild animals on land, and everything that creeps on the
earth.’ ”).
45 Genesis 1:27 (Oxford Study Bible) (“God created human beings in his own image . . . .”);
see also BERNARD E. ROLLIN, ANIMAL RIGHTS & HUMAN MORALITY 44-45 (Prometheus
Books 3d ed. 2006) (noting the use of soullessness as a common reason to exclude animals
from moral consideration).
46 Kelly Wilson, Note, Catching the Unique Rabbit: Why Pets Should Be Reclassified as
Inimitable Property Under the Law, 57 CLEV. ST. L. REV. 167, 171 n.17 (2009).
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ruthless destroyer of lower living beings he will never know health or peace.
For as long as men massacre animals, they will kill each other.”47
Later thinkers, particularly Jeremy Bentham and John Stewart Mill, also
were animal advocates.48 Bentham, in particular, dreamed of a time “‘when
the rest of the animal creation may acquire those rights which never could have
been withheld from them but by the hand of tyranny.’”49 As a Utilitarian,
Bentham recognized only one good—pleasure—and only one bad—pain.50
The duty of a Utilitarian is to act to maximize pleasure and minimize pain for
the greatest number.51 Because Utilitarians focus on sentience, it is not important that animals are physically different from human beings or use different
forms of communication.52 Instead, Bentham believed that animals, as beings
with the capacity to experience feelings such as suffering and joy, are entitled
to consideration equal to that given human beings.53 For Bentham, before a
person acts in a way that will affect animals, he or she should actively assess
whether the action will cause suffering.54
In contrast, thinkers such as Rene Descartes believed animals are unworthy of any moral consideration because they lack consciousness and are the
functional equivalent of machines.55 As Professor Rollin, a respected philosopher and animal rights proponent, explained, Cartesian thinking can be summed
up in three steps: (1) “only humans are rational,” (2) “only humans possess
language,” and (3) “only humans are objects of moral concern.”56 Similarly,
Contractualists, such as Thomas Hobbes, disregarded animals as morally insignificant.57 Although Hobbes willingly accepted that animals have individual
interests, he still did not think they are morally relevant because animals are
unable to express their interests in a way consistent with the social contract.58
For Hobbes and other Contractualists, the meaning of morality stems from
47
The great writer and poet Ovid attributed this quote to Pythagoras. See Pythagoras, INT’L
VEGETARIAN UNION, http://www.ivu.org/history/greece_rome/pythagoras.html (last updated
May 31, 2010).
48 REGAN, supra note 41, at 13-14.
49 Magnotti, supra note 7, at 464 (quoting JEREMY BENTHAN, AN INTRODUCTION TO THE
PRINCIPLES OF MORALS AND LEGISLATION 283 (J.H. Burns & H.L.A. Hart eds., 1982)).
50 REGAN, supra note 41, at 14.
51 Id.
52 Id.
53 Huss, supra note 34, at 63.
54 Id.
55 Magnotti, supra note 7, at 461.
56 ROLLIN, supra note 45, at 50.
57 REGAN, supra note 41, at 9-10.
58 The social contract is a theory loosely stating that individuals give up some of the rights
they would have in the state of nature in order to possess the benefits of living in organized
society. For comprehensive discussions about the social contract, see, for example, THOMAS
HOBBES, LEVIATHAN (J.C.A. Gaskin ed., Oxford Univ. Press 1996) (1651); JOHN LOCKE,
TWO TREATISES OF GOVERNMENT (Ian Shapiro ed, Yale Univ. Press 2003) (1690); JEAN
JACQUES ROUSSEAU, ON THE SOCIAL CONTRACT (Drew Silver ed., G.D.H. Cole trans., Dover
Publ’ns, Inc. 2003) (1762).
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agreements reached between people within a voluntary social contract.59
Morality simply does not apply for those unable to negotiate.60
Interestingly, modern political theorist John Rawls appealed to the social
contract for an entirely different reason—humans must treat animals
humanely.61 Although Rawls did not believe animals were moral beings, he
did believe that humans recoil from animal suffering, and, therefore, acts of
cruelty toward animals breach the social contract people have with each
other.62 Similarly, the German philosopher Immanuel Kant did not recognize
moral worth for animals as individuals.63 Instead, Kant believed that animals
were a “means to an end,”64 and “the end is man.”65 Nonetheless, Kant stated
that “‘a person who already displays . . . cruelty to animals is also no less
hardened towards men. We can already know the human heart, even in regard
to animals.’”66 Essentially, he believed that people have a duty to animals
because animal mistreatment degrades an individual’s humanity and exposes
others to their ugly behavior.67 As is discussed in Subsection E, research indicates that Kant theorized correctly—mistreating animals is correlated with mistreating people.
E. The Link Between Hurting Animals and Hurting People
Individuals who hurt animals are prone to harming human beings as
well.68 Some scholars suggest animal abuse is part of a circle of violence
where children witness animal abuse in the home, then imitate violence later in
life against animal or human victims.69 Alternatively, others describe violence
as a continuum that ranges from cruelty to animals on one end to cruelty to
humans on the other.70 Statistics demonstrate that individuals with a history of
abusing animals are more likely to escalate into harming human beings. For
example, animal abusers are five times more likely than are non-abusers to
59
Scott Wilson, Animals and Ethics, INTERNET ENCYCLOPEDIA PHIL., http://www.iep.utm.
edu/anim-eth/#SH1dhttp://www.iep.utm.edu/anim-eth/#SH1d (last updated Jan. 13, 2010)
(scroll down to “Contractualist Theories”).
60 Id.
61 Margit Livingston, Desecrating the Ark: Animal Abuse and the Law’s Role in Prevention,
87 IOWA L. REV. 1, 15-16 (2001).
62 Id.
63 Huss, supra note 34, at 61.
64 Id. Kant might be referred to as a consequentialist. Consequentialists base moral judgments on the end result or consequence of an action. Thus, in the example discussed above,
animals are only important where they help create a good consequence, such as providing
human beings with a warm fur or a hearty meal.
65 Id.
66 Livingston, supra note 61, at 7 (quoting IMMANUEL KANT, Of Duties to Animals and
Spirits, in LECTURES ON ETHICS 212 (Peter Heath & J.B. Schneewind eds., Cambridge Univ.
Press 1997) (1780-1781)).
67 Huss, supra note 34, at 61 & n.80.
68 See, e.g., Livingston, supra note 61, at 56.
69 Angela Campbell, Note, The Admissibility of Evidence of Animal Abuse in Criminal Trials for Child and Domestic Abuse, 43 B.C. L. REV. 463, 466 (2002).
70 Id. at 468.
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commit violent crimes, including rape, robbery, and assault.71 In a 1966 study
of incarcerated adults, researchers found that approximately fifty-two percent
of the individuals charged with aggressive crimes had histories of animal
abuse.72 By comparison, the same study showed that only seventeen percent of
individuals charged with nonaggressive crimes had engaged in animal
cruelty.73
The connection between animal abuse and aggression toward human
beings is also prevalent amongst history’s most-notorious serial killers. The
“Boston Strangler,” known for murdering thirteen women, spent his youth trapping dogs and cats in crates and torturing them by shooting arrows through the
crates.74 Eric Harris and Dylan Klebold, the teenagers who killed twelve people and committed suicide at Columbine High School, spoke of mutilating animals.75 Kipland Kinkel, who at age fifteen killed both of his parents before
shooting two students at his high school, also expressed his delight in torturing
animals as a child.76 Jeffrey Dahmer, who brutalized, murdered, and cannibalized seventeen men, spent his youth dissecting animals and staking their bodies
to trees in his backyard.77 In recognition of cases such as these, the FBI considers animal cruelty to be one of the predictors of violence and uses animal
abuse as a factor when profiling serial killers.78 The reasoning is simple: the
behavior of serial killers does not change; only the object of their violence
changes.79
Moreover, animal abuse is common in family violence situations.80
Abuse is mainly about the misuse of power and control,81 and pets, women,
and children share a similar position because of their economic dependence,
emotional bonds, and enduring senses of loyalty to an abuser.82 Although a pet
might not be the targeted victim, abusers often threaten or hurt pets as a coercive technique to induce fear in other family members.83 This technique is
particularly effective because domestic violence victims often lack sources of
comfort other than their family pets.84 Furthermore, studies show that children
71 Joseph G. Sauder, Enacting and Enforcing Felony Animal Cruelty Laws to Prevent Violence Against Humans, 6 ANIMAL L. 1, 13 (2000).
72 Livingston, supra note 61, at 47.
73 Id.
74 Id. at 43.
75 Id. at 44.
76 Sauder, supra note 71, at 1 n.1. For further information about Kipland Kinkel, see Sam
Howe Verhovek, Teen-Ager Pleads Guilty in School Shooting, N.Y. TIMES, Sep. 25, 1999, at
A9.
77 James Barron & Mary B.W. Tabor, 17 Killed, and a Life Is Searched for Clues, N.Y.
TIMES, Aug. 4, 1991, at 1.
78 See Sauder, supra note 71, at 14-15; see also The Animal Abuse—Human Violence Connection, PAWS, http://www.paws.org/human-violence-connection.html (last visited Jan. 5,
2011).
79 Sauder, supra note 71, at 14.
80 See, e.g., Dianna J. Gentry, Including Companion Animals in Protective Orders: Curtailing the Reach of Domestic Violence, 13 YALE J.L. & FEMINISM 97, 97 (2001).
81 Campbell, supra note 69, at 481 (“[N]o matter whether abuse is targeted at an animal or a
person, the issue is still the same: power, control, and preying on the vulnerable.”).
82 Id. at 465.
83 Id. at 466.
84 Gentry, supra note 80, at 102.
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who live in abusive homes might commit cruel acts upon animals when the
children witness domestic violence85 or are victims of sexual abuse.86 In fact,
animal abuse is one of three warning signs in the Macdonald triad that mental
health experts correlate with sociopathy and a history of sexual abuse.87 As
one social anthropologist concluded, “One of the most dangerous things that
can happen to a child is to kill or torture an animal and get away with it.”88
Social science statistics affirm the troubling correlation between pet abuse
and family abuse. For example, a 1983 study showed that in homes where
child abuse occurred, at least eighty-eight percent of the pets in the homes were
abused, too.89 Similarly, twenty-eight percent of individuals charged with
animal abuse are simultaneously charged with criminal domestic violence.90
The vast majority of battered women who own pets claim their abusers
threatened or actually harmed their pets.91 As a result, eighteen percent of
female victims who later escaped from an abusive situation claimed they hesitated to do so for fear of leaving their pets behind.92 In addition, sixty-two
percent of the women who later escaped claimed that their children witnessed
animal abuse within the home and thirty-two percent of their children later
engaged in abusive behavior toward pets themselves.93 In conclusion, these
studies demonstrate that investigating animal abuse might reveal serious underlying human crimes and provide an opportunity for preventing harm.
F. The Benefits People Receive From Pets
Whereas abuse of animals causes negative consequences in human lives,
the inverse also appears to be true—pet guardianship is associated with longer,
healthier lives.94 Scientists suggest some of the benefits associated with pets
include lower cholesterol, lower triglycerides, and lower blood pressure95—all
of which are associated with improved heart health and longevity.96 In a study
about heart health, researchers found that ninety-four percent of heart attack
survivors who owned pets were alive one year later.97 By contrast, only fortyfour percent of heart attack survivors without a pet remained alive one year
later.98 In terms of mental health, pet guardianship is also associated with
85
Campbell, supra note 69, at 481.
J.M. Macdonald, The Threat to Kill, 120 AM. J. PSYCHIATRY 125, 126-27 (1963).
87 See, e.g., id.
88 Campbell, supra note 69, at 466.
89 Id. at 464-65.
90 Sauder, supra note 71, at 11 (citing Anita Manning, Hurting Animals Often Sign of
Abuse, USA TODAY, Sept. 10, 1997, at 4D).
91 Gentry, supra note 80, at 103 (noting seventy-one percent of female victims who owned
pets reported that “their male partner had threatened to, or actually had hurt or killed one or
more of their pets”).
92 Id. at 103 n.46.
93 Id. at 103.
94 Epstein, supra note 25, at 35.
95 Archer, supra note 27, at 245.
96 See generally Heart Health Center, WEBMD, http://www.webmd.com/heart/default.htm
(last visited Jan. 5, 2011).
97 Squires-Lee, supra note 19, at 1067.
98 Id.
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decreased depression and decreased need for physician visits.99 The correlation between mental health and pets is so strongly recognized that federal law
has made strides to allow companion animals as disability accommodations for
those with mental health issues.100
Interestingly, animals can play an important role in recovering from abuse
and emotional difficulties as well.101 Studies show that child victims of sexual
abuse who have animal companions for comfort are less likely to become abusers themselves.102 They also suffer from less anger and negative emotions than
do victims who do not have animal companions.103 Child-development specialists have also used the unique ability of children to bond with pets not only
in abuse situations, but to help socialize children with autism and other diseases
that inhibit social interaction with people.104 These benefits likely occur
because “pets can facilitate emotional and social development in children by
providing uncritical and nonjudgmental affection and by fostering nurturing
skills.”105
III. CURRENT NEVADA LAW ABOUT ANIMALS
A. Progressive Animal Laws in Nevada
Nevada is surprisingly progressive in recognizing the important role animals play in domestic violence situations.106 Under Nevada Revised Statutes
(NRS) § 33.018, injuring or killing an animal is a type of harassment that constitutes domestic violence.107 Moreover, NRS § 33.030 gives judges authority
to enjoin abusers from “injuring, threatening to injure, or taking possession of
any animal.”108 Judges may also make specific arrangements for pets through
court orders.109 The most impressive feature about Nevada’s protection of animals is the support and promotion of the Shade Tree Women’s Shelter and
Noah’s Ark Animal Shelters.110 Unlike facilities in any other western states,
99 R. Lee Zasloff, Measuring Attachment to Companion Animals: A Dog Is Not a Cat Is Not
a Bird, 47 APPLIED ANIMAL BEHAV. SCI. 43, 47 (1996).
100 See, e.g., 29 U.S.C. § 794 (2006) (prohibiting discrimination of disabled persons by any
program that receives federal funding); 42 U.S.C. § 3604 (2006) (prohibiting discrimination
in housing and requiring reasonable accommodations for disabled individuals).
101 See, e.g., Livingston, supra note 22, at 807-08.
102 Id. at 807.
103 Id. at 807-08.
104 Nat’l Insts. of Health, Can Pets Keep You Healthy?, NEWS HEALTH, Feb. 2009, at 1, 2,
http://newsinhealth.nih.gov/2009/February/feature1.htm.
105 Livingston, supra note 22, at 807; see also Can Pets Keep You Healthy?, supra note
104, at 1-2.
106 Nevada is one of only seventeen states that currently include pets in protective orders.
Rebecca F. Wisch, Domestic Violence and Pets: List of States that Include Pets in Protection
Orders, ANIMAL LEGAL AND HISTORICAL CENTER 2010, http://www.animallaw.info/articles/
ovusdomesticviolencelaws.htm.
107 NEV. REV. STAT. § 33.018 (2009).
108 Id. § 33.030(1)(e).
109 Id. § 33.030(2)(b).
110 See Noah’s Animal House, THE SHADE TREE, http://noahs.theshadetree.org/about_us.
html (last visited Jan. 5, 2011) (describing resources provided to domestic violence
survivors).
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these two neighboring locations coordinate to allow victims of domestic violence to bring their pets with them when escaping abusive environments.111
An additional progressive law in Nevada mandates psychological treatment or counseling for juveniles who by any act, omission, or neglect, cause
unjustifiable physical pain, suffering, or death to an animal.112 Only twelve
states have laws that include mental health services as a rehabilitative measure
for youth that hurt animals.113 Impressively, Nevada is one of only two states
that mandates treatment instead of allowing counseling at a judicial officer’s
discretion.114 Consistent with the abuse statistics discussed previously,115
Nevada appears to recognize that youths who injure animals are at high risk to
injure human beings and are likely victims of mistreatment themselves.116
Lastly, Nevada, like many states,117 validates trusts made for the benefit
of animals. Although courts have often refused to honor trusts for pets, on the
theory that animals cannot stand on their rights as beneficiaries,118 Nevada law
specifically allows a trustee or other person who has demonstrated interest in
the welfare of the animal beneficiary to enforce the trust as necessary.119 With
the exception of trustee enforcement, Nevada treats animal beneficiaries the
same as human beneficiaries and gives settlers the same rights to provide for
their pets as for other beneficiaries.120 Especially considering that Nevada law
does not recognize a trust to care for a toaster, dining room set, or even classic
car,121 this law shows an impressive recognition of the special role animals
play in their guardians’ lives and continue to play after death.
B. Statutory Definitions and Inconsistencies
Despite its progressive treatment of animals in domestic violence situations and estate planning, the Nevada legislature defines pets within the meaning of personal property in NRS § 193.021.122 Essentially, Nevada law places
a pet dog and all “domestic animals and birds” in the same category as household appliances and other chattel.123 Unfortunately, this simplistic category
creates numerous problems in applying laws to pets.
111
Id.
NEV. REV. STAT. § 62E.680.
113 Am. Humane’s Office of Pub. Policy, State Laws for Convicted Animal Abusers, AM.
HUMANE ASS’N, http://www.americanhumane.org/assets/docs/advocacy/ADV-laws-statecounseling-animal-abuse.pdf (last updated June 2008).
114 Am. Humane’s Office of Pub. Policy, State Laws Establishing Psychological Evaluations for Convicted Animal Abusers, AM. HUMANE ASS’N, http://www.americanhumane.org/
assets/docs/advocacy/ADV-laws-state-eval-animal-abuse.pdf (last updated June 2008).
115 See supra Part II.E.
116 Id.
117 JESSE DUKEMINIER, ROBERT H. SITKOFF, & JAMES LINDGREEN, WILLS, TRUSTS, AND
ESTATES 587 (8th ed. 2009) (noting that many state statutes follow the Uniform Trust Code
or Uniform Probate Code in allowing trusts for pet animals).
118 Id. at 585.
119 NEV. REV. STAT. § 163.0075(3) (2009).
120 Id. § 163.0075.
121 Id. § 163.006 (defining a beneficiary).
122 Id. § 193.021.
123 Id. (“ ‘Personal property’ includes dogs and all domestic animals and birds . . . all kinds
or descriptions of money, chattels, and effects . . . .”).
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An additional problem involves the very definition of pet. NRS § 574.300
defines a pet as “a domestic cat or dog commonly kept for pleasure.”124 By
limiting the definition of pets to dogs and cats, Nevada law denies a large number of pet guardians the protections and responsibilities of the law. A study of
the APPA pet surveys from 2003 until 2009 indicates that guardianship of
small mammals, birds, and reptiles has increased steadily.125 For example, reptile guardianship increased a remarkable fifty-one percent in just six years.126
Reports for 2009-2010 indicate Americans own 13.6 millions reptiles, 15.9 million small mammals, such as rodents, and fifteen million birds.127 Although
fewer people keep nontraditional animals as pets versus cats and dogs, their
history of companionship with human beings dates back to ancient Egypt and
Greece.128 For example, in Babylonia and Assyria, royalty kept exotic pets as
a symbol of their political power.129 Leaders believed that the ability to maintain exotic animals, as opposed to ordinary, domestic pets, symbolized that they
were able to dominate all manner of creature, including human beings.130
Moreover, as early as the sixteenth century, several Native American tribes
routinely kept raccoons, bears, birds, and a wide assortment of animals purely
for companionship.131 As the court in Rabideau noted in the context of a negligent infliction of emotional distress case, humans are capable of bonding with a
wide variety of other living beings and there is little basis for rationally distinguishing dogs from other categories of animal companions.132
One of the biggest issues in Nevada animal law is the inconsistent definitions of animals and pets throughout the Nevada Revised Statutes. For purposes of animal mistreatment, NRS § 574.050 defines an animal as any living
creature except for a human being.133 Thus, the crime of participating in
animal fights applies to all types of animals,134 although dog fighting is a separate offense with higher penalties.135 By comparison, NRS § 574.195, which
prohibits leaving a pet in a vehicle during extreme heat or cold, applies only to
cats and dogs.136 Similarly, NRS § 574.360 requires housing facilities for cats
and dogs to be safe and clean and requires guardians to provide potable water,
124
NEV. REV. STAT. § 574.300 (2009).
Compare Lianne McLeod, American Pet Ownership Statistics, ABOUT.COM: EXOTIC
PETS, http://exoticpets.about.com/cs/resourcesgeneral/a/petstates.htm (last visited Jan. 5,
2011) (discussing pet guardianship statistics from 2003 through 2006), with APPA Survey,
supra note 23 (listing pet ownership statistics for 2009-10).
126 McLeod, supra note 125 (showing that Americans owned nine million reptiles in 2003
and 13.6 million reptiles in 2009); APPA Survey, supra note 23.
127 APPA Survey, supra note 23.
128 Squires-Lee, supra note 19, at 1064.
129 Duckler, supra note 6, at 205.
130 Id.
131 Squires-Lee, supra note 19, at 1064.
132 Rabideau v. City of Racine, 627 N.W.2d 795, 798-99 (Wis. 2001).
133 NEV. REV. STAT. § 574.050 (2009) (defining animal); id. § 62E.680(3)(a) (For purposes
of juvenile delinquency involving an animal, an animal is defined as any living creature
outside the human race.).
134 Id. § 574.060.
135 Id. § 574.107.
136 Id. § 574.195.
125
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but does not apply to other types of animals.137 These inconsistencies are problematic because they imply that leaving a pet in inhospitable conditions is only
abuse if that animal is a cat or a dog, which leaves a wide range of pets
unprotected.
C. Lax Animal Cruelty Laws and Lack of Civil Remedies
Nevada law is lax on individuals who engage in animal abuse. Although
public offenses related to animal fighting carry serious sentences,138 private
torturing, abandoning, or neglecting animals remains a minor misdemeanor
unless categorized as “malicious mischief.”139 Moreover, the very definitions
of abuse and neglect require forms of mistreatment to be extreme before being
considered unlawful. For example, the Nevada legislature recently amended
NRS § 574.100 to include tethering as a form of mistreatment.140 Unfortunately, NRS § 574.100 defines tethering as keeping an animal outdoors on a
restraint less than twelve feet long or keeping an animal restrained outside more
than fourteen hours a day.141 Although legislators applauded this amendment
as a step in the right direction, this watered-down142 law does not realistically
protect animals for three main reasons. First, it is very difficult to determine
when a person has tethered a dog for the required amount of time. Second, the
law makes no comment on weather conditions, which means an animal can be
tethered outside for fourteen hours in snow, flooding rains, or 120-degree heat.
Third, because dogs are particularly social animals, it is emotionally damaging
for them to be isolated for the entirety of their waking lives.143
137
Id. § 574.360.
See id. § 574.060 (Keeping premises used for animal fighting is punishable by a gross
misdemeanor for first offenses and felony punishment for all subsequent offenses.); id.
§ 574.070 (Witnessing animal fights is punishable by a misdemeanor for first offenses, gross
misdemeanor for second offenses, and felony punishment for third or subsequent offenses.
Instigating animal fights is punishable by a gross misdemeanor for first offenses and felony
punishment for all subsequent offenses, unless the animal involved is a dog, in which case
even the first offense is charged as a felony.).
139 Compare id. § 206.150(1) (“any person who willfully and maliciously kills, maims or
disfigures any animal belonging to another, or exposes any poison or noxious substance with
intent that it should be taken by the animal is guilty of a category D felony . . . .”), with id.
§ 574.100(2) (The first two offenses for overdriving, torture, or cruelty, are punishable as
misdemeanors with no more than six months in county jail. Only upon a third offense is an
offender subject to class C felony charges and a potential imprisonment of one to five
years.).
140 S.B. 132, 2009 Leg., 75th Sess. (Nev. 2009) (Governor Gibbons signed this bill into law
on May 26, 2009, and it became effective Oct. 1, 2009.).
141 NEV. REV. STAT. § 574.100(2).
142 S.B. 132 (The Amendment as originally proposed by Senator Townsend on February 12,
2009, opposed tethering for greater than nine hours in a twenty-four hour period.)
143 During debates before the Nevada legislature on S.B. 132, several animal enthusiasts
expressed similar concerns. Minutes of the Meeting of the Assemb. Comm. on Natural Res.,
Agric., & Mining, 2009 Leg., 75th Sess. 7-8, 13, Exhibit G (Nev. 2009) available at http://
www.leg.state.nv.us/Session/75th2009/Reports/history.cfm?ID=339 (statements of Dr.
Frank McMillan and Tami Simon, representing Best Friends Sanctuary).
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Even if NRS § 574.100 included more-protective language, animal abusers get “two strikes” before they are eligible for felony charges.144 Prior to the
third prosecuted offense, animal mistreatment is a misdemeanor punishable by
a maximum of 180 days in jail.145 Because Nevada law does not allow prosecutors to use discretion when deciding how to charge animal abuse, even the
most egregious acts are misdemeanors for first and second offenses. For example, when a Las Vegan was accused of sealing kittens into a wall at a construction site, the Clark County District Attorney’s Office was only able to indict the
abuser for animal cruelty, a misdemeanor.146 Furthermore, because animal
abuse is often a cry for help before an individual commits serious crimes
against humans,147 the state of Nevada essentially forfeits an opportunity to
prevent crime escalation.
Because Nevada criminal animal abuse and neglect laws are ineffective,
individuals whose pets are injured have a particularly strong interest in civil
remedies.148 Unfortunately, civil remedies are virtually impossible under NRS
§ 41.740.149 Under NRS § 41.740, pet guardians may recover only limited
damages for the intentional, willful, reckless, or negligent injury of a pet.150
Included in these damages, guardians may collect veterinary costs and loss of
market value for their pets.151 During the state legislature’s debate on NRS
§ 41.740, state senators and even so-called animal advocates heralded the law
as a step forward for pet guardians, but it actually represents little, if any, progress.152 Because pets essentially have no market value,153 this law realistically provides no compensation to an injured pet guardian. Even if an animal is
particularly valuable, NRS § 41.740 prohibits market value damages in excess
144 See discussion supra note 139; see also Gail Connors, “Three Strikes and You’re Out”
in Nevada for Animal Cruelty and Abuse, 8 NEV. LAW. 32, 32 (2000).
145 See discussion supra note 139.
146 KVBC, Testimony Begins at Kitten Cruelty Trial, NEWS 3 (Feb. 13, 2009, 7:04 AM),
http://www.kvbc.com/Global/story.asp?S=9840607&nav=15MV; KVBC, Update: Arrest
Made in Animal Cruelty Case, NEWS 3 (June 5, 2008, 4:34 PM), http://www.kvbc.com/
Global/story.asp?s=8433139 [hereinafter KVBC, Update].
147 See supra Part II.E.
148 See Squires-Lee, supra note 19, at 1072.
149 See NEV. REV. STAT. § 41.740 (2009).
150 Id.
151 Id. § 41.740(1)(a)-(c) (2009).
152 Minutes of the Meeting of the Assemb. Comm. on Judiciary, 2007 Leg., 74th Sess. 13-17
(Nev. 2007), available at http://www.leg.state.nv.us/Session/75th2009/Reports/history.cfm?
ID=339 (showing how little congresspersons care about pets because the bulk of debates is
on how little to actually give aggrieved pet guardians).
153 See Thompson v. Lied Animal Shelter, No. 2:08-cv-00513, 2009 U.S. Dist. LEXIS
96383, at *5 (D. Nev. Oct. 14, 2009) (“The replacement value of a puppy is almost certainly
less than $1,000.”); Jankoski v. Preiser Animal Hosp., Ltd., 510 N.E.2d 1084, 1086 (Ill. App.
Ct. 1987) (“The courts have recognized, however, that there are a number of items of personal property that have no market value. Included in this group are . . . pets.”); Brousseau v.
Rosenthal, 443 N.Y.S.2d 285, 286-87 (N.Y. Civ. Ct., 1980) (noting that market value of a
pet decreases as it ages, but the value to the guardian increases over time); Burgess v.
Shampooch Pet Indus., Inc., 131 P.3d 1248, 1251 (Kan. Ct. App. 2006) (“The fair market
value of ordinary pets, unless they have special qualities as breeding or working animals, is
usually close to zero . . . .”). For a great critique of market value, see Wilson, supra note 46,
at 192-96 (suggesting increased value for pets as inimitable property instead of the market
value approach).
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of $5,000 per pet,154 which restricts such claims to the realm of small claims
court, and away from the interest of attorneys.155 Lastly, the law prohibits
punitive or non-economic damages to compensate pet owners for their emotional damages or to punish offenders.156 Because the bulk of a pet’s worth is
emotional,157 the inability of a pet guardian to recover for pain and suffering
caused by injury or death of a pet means that a pet guardian will never be made
“whole” within the confines of Nevada civil law. The absence of punitive damages means individuals who partake in especially egregious conduct escape
civil liability, providing little deterrence for even the most outrageous behavior.
Moreover, in monetary terms, this means wronged plaintiffs might be better off
paying for their own damages, because court and attorney costs are often quite
expensive and there has never been a successful case of recovery in Nevada
history.158
Pet guardians are unlikely to be successful if they pursue alternative outlets such as intentional infliction of emotional distress, negligent infliction of
emotional distress, or punitive damages. As the United States District Court for
the District of Nevada noted in Thompson v. Lied Animal Shelter, “[A] plaintiff
cannot make out a prima facie case of intentional infliction of emotional distress . . . or negligent infliction of emotional distress . . . in Nevada based on the
death of an animal.”159 Specifically, intentional infliction of emotional distress
claims ordinarily will fail because harm to or killing of a person’s animal “cannot be found to be ‘unquestionably violent and shocking.”’160 Because intentional infliction of emotional distress requires extreme and shocking
behavior,161 it is improbable that a case involving injury to an animal, even in
egregious circumstances, will succeed. Moreover, claims of negligent infliction of emotional distress require an alleged victim to be related to the injured
party by blood or marriage.162 Because human beings are not related to animals within the “first degree of consanguinity,”163 they will never be able to
prove negligent infliction of emotional distress.
Given this sad state of the law, it is unsurprising that few pet guardians
ever seek legal redress.
154
NEV. REV. STAT. § 41.740(3) (2009).
Pursuant to NRS § 73.010, damages for small claims cases in Nevada may not exceed
$5,000. Id. § 73.010.
156 Id. § 41.740(2).
157 Morgan v. Kroupa, 702 A.2d 630, 633 (Vt. 1997) (“[A pet’s] worth is not primarily
financial, but emotional; its value derives from the animal’s relationship with its humans
companions.”).
158 A search of Justice Court and District Court records reveals no active animal law cases
as of September 15, 2010. Moreover, a ten-year search in both the Las Vegas Review Journal and Reno Gazette shows very few examples of animal mistreatment where a guardian
pursued legal remedies, and no instances of a successful lawsuit.
159 Thompson, 2009 U.S. Dist. LEXIS 96383, at *20.
160 Id. at *22 (citing Nelson v. City of Las Vegas, 665 P.2d 1141, 1145 (Nev. 1983)).
161 Id. at *21.
162 Id. at *22-23 (citing Grotts v. Zahner, 989 P.2d 415, 416 (Nev. 1999)).
163 Id. at *26 (quoting Grotts, 989 P.2d at 416 & n.1).
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D. Problem with Nevada Pet Stores
Nevada law fails to protect pets while they are in pet stores or similar
facilities where pets may be “bought.” Strikingly, state law does not require a
pet store or shop to obtain a license to sell pets. Although statutory law
requires operators or dealers to provide cats and dogs164 with access to food
once a day,165 water twice a day,166 and “a minimum amount of floor
space,”167 no penalties are enumerated for violations, other than the misdemeanor provisions that apply to all Nevadans. Thus, under Nevada law, a pet
may wallow in a pet store for months without exercise, socialization, or even
basic necessities without any legal consequence.
Furthermore, under Nevada law, pet guardians receive very little information about a potentially adoptable pet. NRS § 574.480 only requires pet stores
to provide the pet’s date of birth, source, lineage, and medical history for dogs
or cats.168 By contrast, California appropriately requires stores to give customers written information on animal’s housing, equipment, cleaning, feeding, and
environmental requirements.169 This means that Nevada pet guardians that
adopt their pet from a pet store170 are not entitled to guidance when picking out
a potential new companion. Given that pet adoption is a life-long commitment,171 it is simply unacceptable to allow potential guardians to go into such a
big decision without appropriate information.
E. Enforcement of Nevada Animal Laws
Even if Nevada’s animal laws were effective as written, the law ceases to
have any meaningful value without proper enforcement. One of the biggest
problems in Nevada with regard to laws that concern animals involves confusion over which enforcement agency has authority to handle problematic situations involving animals. Although county animal control is often the first line
of defense against animal abuse and cruelty, animal control officers may only
act pursuant to state laws and local ordinances, which mainly regulate animal
capture and fee or fine collection.172 Where the state legislature or a compara164 NEV. REV. STAT § 574.370 (specifying that pet shops are not required to provide for
animals other than cats and dogs.).
165 Id. § 574.420.
166 Id.
167 Id. § 574.400.
168 Id. § 574.480.
169 CAL. PENAL CODE § 597l(b)(1) (West 2010).
170 See KERRY S. KLEYMAN & VERONICA BLAS DAHIR, CTR. FOR RESEARCH DESIGN &
ANALYSIS, A SURVEY OF NEVADA RESIDENTS’ ATTITUDES REGARDING PETS, VETERINARIANS, AND ANIMAL SHELTERS, 4 (2008), available at http://www.maddiesfund.org/Documents/Funded%20Projects/Nevada%20Resident%20Survey%20Final%20Report%20.pdf
(stating that only twenty percent of pet guardians obtained all of their cats and dogs from
animal shelters).
171 Am. Soc’y for the Prevention of Cruelty to Animals, Questions to Ask Yourself Before
Adopting, ASPCA, http://www.aspca.org/adoption/adoption-tips/questions-to-ask-beforeadopting.html (last visited Jan. 5, 2011).
172 See Animal Control, CITY OF LAS VEGAS NEVADA, http://www.lasvegasnevada.gov/
information/4189.htm (last visited Jan. 5, 2011); Washoe County Regional Animal Services,
WASHOE COUNTY NEVADA, http://www.co.washoe.nv.us/animal (last visited Jan. 5, 2011).
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ble county authority has not acted, animal control officers often are unable to
help animals because they only have authority to enforce established rules and
regulations.173 Even if statutory law clearly prohibits a behavior, there is often
confusion about whether the offense against the animal is a minor violation that
animal control can handle or a serious criminal offense that requires support
from the police department.174
Moreover, even where animal control or other law enforcement personnel
investigate an animal-related matter, it is unlikely that prosecutors will ever
pursue criminal charges. In Reno, for example, Animal Services fully investigates ten to twelve cruelty cases a year, but only three or four result in legal
action.175 In Clark County, approximately fifteen percent of the four thousand
calls about animal cruelty actually result in prosecution.176 One explanation
for the drop-off is that the main form of evidence in offenses against animals is
the animal itself, and the proper keeping of the animal and preservation of
evidence is particularly challenging.177 For example, during a 2006 cock-fighting bust in Las Vegas, police confiscated 177 fighting roosters.178 Because the
animals were unruly, the animal shelter where they were housed decided to
euthanize all of the roosters.179 Since the euthanasia of the roosters in 2006,
the Clark County District Attorney’s Office has not pursued charges for criminal animal fighting.180 Even where a case is properly investigated, draws
media attention, and is eligible for criminal charges, it is highly unlikely that a
perpetuator of animal mistreatment will ever be brought to justice.
In addition to institutional problems, weak to non-existent penalties for
offenses against animals undermine enforcement.181 Prosecutors are already
overburdened and operating on tight budgets, so they are largely unwilling to
handle animal abuse cases unless the charge is bootstrapped to a “more serious”
criminal offense, namely one involving human victims.182 For example, when
173 For example, animal control officers in Las Vegas, Nevada, have “power and authority”
to enforce rules and regulations within ordinance Title 7.04. Essentially, this means that
officers may investigate animal-related threats to public health and safety, barking dogs, and
certain instances of animal cruelty. See LAS VEGAS, NEV., CODE § 7.04.060 (Supp. 2010).
Similarly, in Washoe County, animal control officers are largely in charge of capturing animals, maintaining pounds, and collecting fees and fines. See WASHOE COUNTY, NEV., CODE
§ 55.040 (Supp. 2009).
174 Confusion occurs because both state criminal law and local ordinances may concurrently
penalize certain behavior. Compare LAS VEGAS, NEV., CODE § 7.04.065 (Supp. 2010)
(defining an animal fighting venture), with NEV. REV. STAT. § 574.060 (2009) (criminalizing
animal fighting).
175 Connors, supra note 144, at 33.
176 KVBC, Update, supra note 146.
177 See Rebecca J. Huss, Lessons Learned: Acting as Guardian/Special Master in the Bad
Newz Kennels Case, 15 ANIMAL L. 69, 78-79, 85 (2008).
178 Maggie Lillis, Coming Home to Roost: 300 Roosters, Hens Seized in LV, LAS VEGAS
REV. J., Sept. 22, 2009, at 2B.
179 Id.
180 NEV. REV. STAT. § 574.060 (2009) (Although the Clark County District Attorney could
have pursued multiple accounts of unlawfully keeping a place for fighting birds, a search of
Justice Court and District Court records reveal no charges as of December 16, 2009.).
181 See discussion supra Part III.C.
182 This might be considered a form of interest-convergence because a privileged group,
namely humans, provides legal protection to a disadvantaged group, namely animals, where
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Nye County officers arrested three individuals involved in a cock-fighting ring,
the District Attorney’s Office did not pursue charges.183 By comparison, when
Judge Stephany Miley’s husband choked the family’s cocker spaniel in addition
to battering the judge in front of their minor sons, the Clark County District
Attorney charged him with animal cruelty, felonious child abuse and neglect,
and domestic violence.184
Other states prove that tight budgets are no excuse for failing to enforce
laws that protect animals. In California, for example, animal abuse may result
in a felony conviction on the first offense.185 Under California Penal Code
§ 597(b), even first-time offenders are subject to up to three years imprisonment.186 As a result, California courts are more likely to take animal offenses
seriously. In one case, a California judge upheld a three-year prison sentence
and felony conviction after a man killed a dog in an act of road rage.187 Appellate Judge Premo reasoned that three years was more than reasonable and cited,
with favor, the trial judge’s statement that any attempted defense claiming accidental killing was “insulting to the intelligence of any person who thinks.”188
IV. ANIMAL LAW
IN
OTHER JURISDICTIONS
A. Legal Achievements in Animal Law
California is not the only state making strides to improve animal law.
Currently, there are 121 law schools across the United States that teach animal
law classes and a smattering of schools that offer hands-on animal law clinics.189 More than twenty state bar associations have animal law sections,190
and an increasing number of books and journals discuss the subject at length.191
their interests converge. For a more comprehensive discussion of animal laws as the product
of interest-convergence, see Ani B. Satz, Animals as Vulnerable Subjects: Beyond InterestConvergence, Hierarchy, and Property, 16 ANIMAL L. 65, 68-70 (2009).
183 KLAS-TV, Nye County Breaks Up Cock Fighting Ring, 8 NEWS NOW (Mar. 4, 2008,
5:16 PM), http://www.lasvegasnow.com/global/story.asp?s=7966105. Although the police
investigations resulted in the arrest of three suspects, a search of Justice Court and District
Court records reveal no charges as of December 16, 2009.
184 Antonio Planas, Judge Miley Receives Protective Order; Husband Ordered to Stay Away
from Family, LAS VEGAS REV. J., Oct. 6, 2009, at 5B., available at http://www.lvrj.com/
news/judge-miley-receives-protective-order-63585162.html; Judge’s Divorce Filing Follows
Arrest of Her Husband, a Lawyer, LAS VEGAS SUN, Nov. 26, 2009, at 2, available at http://
www.lasvegassun.com/news/2009/nov/26/judges-divorce-filing-follows-arrest-her-husbandl/.
185 CAL. PENAL CODE § 597(b) (West 2010).
186 People v. Burnett, 110 Cal. App. 4th 868, 873, 885 (Cal. Ct. App. 2003).
187 Id. at 870-71, 873, 885.
188 Id. at 884.
189 Animal Law Courses, ANIMAL LEGAL DEF. FUND, http://www.aldf.org/article.php?id=
445 (last visited Jan. 5, 2011). Interestingly, the number of schools with animal law courses
is increasing rapidly. Compare Wharton, supra note 4, at 440 (noting that, in 2008, ninetyfive law schools had animal law classes).
190 Wharton, supra note 4, at 440.
191 Examples of animal-specific law journals include the Stanford Journal of Animal Law
and Policy, http://sjalp.stanford.edu/; Lewis and Clark Law School Animal Law Review,
http://legacy.lclark.edu/org/animalaw/; Michigan State University Journal of Animal Law,
http://animallaw.info/policy/pojournalanimallawindex.htm; and University of Pennsylvania
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Moreover, some states have made impressive strides in animal law
through progressive legislation. For example, the Illinois Humane Care for
Animals Act allows pet guardians to bring civil actions to recover for mistreatment of their pets.192 Unlike Nevada law codified in NRS § 41.740,193 Illinois
allows damages for emotional distress in addition to punitive damages up to
$25,000 for each act of abuse or neglect.194 In Tennessee, state Senator Steve
Cohen authored the “T-Bo Act” after a large, aggressive dog, running loose,
killed his twelve-year-old Shih Tzu, T-Bo, and the Senator was unable to
recover damages.195 Now codified as Tennessee Code § 44-17-403, pet guardians may recover market value as well as $5,000 in non-economic damages,
such as emotional distress.196
The federal government has also created an incentive for states to think
carefully about the value of pets. Enacted in 2006, the Pet Evacuation and
Transportation Standards Act197 requires states to create disaster plans that
include arrangements for family pets198 as well as disability assistance animals.199 The Act also gives explicit authority to the director of the Federal
Emergency Management Agency to fund emergency animal facilities and to
withhold funds from states that fail to provide plans for the care of animals.200
Some states, like California, have already enacted laws in order to comply with
the PETS Act. For example, California Health and Safety Code § 122354(9)
requires all pet stores and similar facilities to plan for the humane care of animals in the event of a natural disaster.201
Journal of Animal Law & Ethics (now discontinued). Although a comprehensive listing of
books would be too extensive, examples of excellent books include: BRUCE A. WAGMAN,
SONIA WAISMAN & PAMELA D. FRASCH, ANIMAL LAW: CASES AND MATERIALS (4th ed.
2010); DAVID S. FAVRE, ANIMAL LAW: WELFARE, INTERESTS, AND RIGHTS (2008); and
TAIMIE L. BRYANT, REBECCA J. HUSS, & DAVID N. CASSUTO, ANIMAL LAW AND THE
COURTS: A READER (2008).
192 510 ILL. COMP. STAT. ANN. 70/16.3 (West 2004).
193 NEV. REV. STAT. § 41.740 (2009).
194 510 ILL. COMP. STAT. ANN. 70/16.3.
195 Honoring Animal Victims: Landmarks in Legislation, ANIMAL LEGAL DEF. FUND (Feb.
10, 2009), http://www.aldf.org/downloads/ALDF_Honoring_Animal_Victims_Landmarks.
pdf.
196 TENN. CODE ANN. 44-17-403 (West 2010).
197 Pets Evacuation and Transportation Standards Act of 2006, P.L. No. 109-308, § 2, 120
Stat. 1725, 1725 (2006) (codified as amended at 42 U.S.C. § 5196 (2006)).
198 Oddly, the Federal Emergency Management Agency (FEMA) defines a family pet as
“[a] domesticated animal, such as a dog, cat, bird, rabbit, rodent, or turtle that is traditionally kept in the home for pleasure rather than for commercial purposes, can travel in commercial carriers, and be housed in temporary facilities. Household pets do not include
reptiles (except turtles), amphibians, fish, insects/arachnids, farm animals (including horses),
and animals kept for racing purposes.” See Eligible Costs Related to Pet Evacuations and
Sheltering, FEMA (Oct. 24, 2007), http://www.fema.gov/government/grant/pa/9523_19.
shtm (emphasis added).
199 Pets Evacuation and Transportation Standards Act of 2006, § 2.
200 Id. § 3.
201 CAL. HEALTH & SAFETY CODE § 122354(b)(9) (West Supp. 2010) (“In the event of a
natural disaster, an emergency evacuation, or other similar occurrence, the humane care and
treatment of each animal is provided for, as required by this chapter, to the extent access to
the animal is reasonably available.”).
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State courts have also been receptive to legal recognition for animals,
despite the misguided classification of animals as property. In divorce cases,
for example, some courts have begun treating pets comparably to children, considering the pet’s bests interests in custody disputes202 or even appointing a
guardian ad litem for the animal.203 Some courts have even included “reasonable visitation” of a pet as part of a divorce decree.204
Tort law has also seen increased recognition of the value of animals. In
Florida, for example, judges have been particularly receptive to tort cases
requesting compensatory and punitive damages for torts against animals. As
early as 1964, the Florida Supreme Court allowed a plaintiff to recover damages for mental suffering after the defendant maliciously killed the plaintiff’s
pet dachshund.205 In 1978, the Florida Court of Appeals affirmed $12,000 in
punitive damages after a veterinarian negligently burned a dog, which led to the
dog’s death;206 in 1992, the same court reaffirmed that punitive and emotional
damages can be appropriate for egregious killing of animals, even by veterinary
professionals.207 Going a step further, Hawaii law allows pet guardians to
receive emotional damages when their pets are negligently killed, even if the
guardian is not a witness to the event.208
Most significantly, federal courts are beginning to recognize the value of
pets. To date, three federal circuit courts of appeal have noted that the shooting
of a dog by police is a seizure under the Fourth Amendment, and police may
not be immune to claims of intentional infliction of emotional distress or civil
rights violations for killing a person’s animals.209
The Court of Appeals for the Ninth Circuit recently recognized this issue
in San Jose Charter of the Hells Angels Motorcycle Club v. City of San Jose. 210
In Hells Angels, police officers spent a week planning the execution of warrants in the motorcycle gang’s members’ homes.211 Although the police
officers knew that two of several persons of interest had dogs, the officers
never considered non-lethal means to isolate the animals.212 Upon executing
202
Raymond v. Lachmann, 695 N.Y.S.2d 308, 309 (N.Y. App. Div. 1999).
In re Estate of Ronald W. Callan, Jr., No. D-2252 (Prob. Ct. of Shelby Cnty., Tenn. Mar.
20, 2007) (order appointing guardian ad litem), available at http://www.animallaw.info/
pleadings/pb_pdf/pbustncallan_guardian_appointment.pdf.
204 Arrington v. Arrington, 613 S.W.2d 565, 569 (Tex. Civ. App. 1981).
205 La Porte v. Associated Indeps., Inc., 163 So. 2d 267, 267-69 (Fla. 1964).
206 Knowles Animal Hosp., Inc. v. Wills, 360 So. 2d 37, 38 (Fla. Dist. Ct. App. 1978).
207 Johnson v. Wander, 592 So. 2d 1225, 1226 (Fla. Dist. Ct. App. 1992).
208 Campbell v. Animal Quarantine Station, 632 P.2d 1066, 1067 (Haw. 1981).
209 Brown v. Muhlenberg Twp., 269 F.3d 205, 210 (3d Cir. 2001) (“[W]e join two of our
sister courts of appeals in holding that the killing of a person’s dog by a law enforcement
officer constitutes a seizure under the Fourth Amendment.”).
210 San Jose Charter of the Hells Angels Motorcycle Club v. City of San Jose, 402 F.3d 962,
976 (9th Cir. 2005) (holding that killing of a person’s dog by law enforcement is a seizure
under the Fourth Amendment).
211 Id. at 967.
212 Id. at 977 (“As the district court explained, the officers ‘created an entry plan designed
to bring them into proximity of the dogs without providing themselves with any non-lethal
means for controlling the dogs. The officers, in effect, left themselves without any option
but to kill the dogs in the event they—quite predictably—attempted to guard the home from
invasion.’ ”).
203
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the warrant, a police officer shot two dogs twice each to make sure the dogs
would not “be a problem.”213 Although the officers involved in the case
claimed safety reasons justified their actions, the judge quickly rejected their
argument because the police officers effectively created their own exigency,
which resulted in unnecessary destruction of the pets.214 Circuit Judge Paez
held that police officers are not immune from civil rights suits for needlessly
killing a suspect’s dog and added that “dogs are more than just a personal
effect. The emotional attachment to a family’s dog is not comparable to a
possessory interest in furniture.”215
B. Cases in the Animal Law Hall of Shame
Despite the progressive cases noted above, the vast majority of courts still
cling to outdated ideas.216 For example, the Restatement (Third) of Torts
explicitly rejects liability for emotional disturbance caused by destroying a
pet.217 Although the Restatement is a secondary authority, it is well respected
by courts and generally accepted for its accurate summaries of black letter law
used in the majority of states.
Following the majority trend, several courts have reached appalling conclusions about animal law. In Miller v. Peraino, a plaintiff pet guardian was
unable to recover damages after a veterinarian maliciously beat the plaintiff’s
dog to death.218 Relying on a Pennsylvania law that prohibits damages against
veterinarians for intentional infliction of emotional distress based upon their
behavior towards an animal, the Superior Court of Pennsylvania reasoned that
even cases of abuse are ineligible for recovery.219 The court further rejected
any claims of emotional distress because state law only allowed emotional
damages by immediate family members, and “[dogs] are not members of one’s
family.”220 As a result, a senseless killing by a trusted professional went completely unpunished and no deterrent precedent was set.
In another outrageous case, the Indiana Appellate Court rejected a plethora
of claims, including intentional infliction of emotional distress and a request for
an injunction, after the defendant’s German shepherd and English bulldog
killed the plaintiff’s Jack Russell terrier.221 The case was particularly egregious because the attack occurred in the presence of the plaintiff and was the
first in a series of three vicious attacks by the larger dogs.222 Holding that the
213
Id. at 969.
Id. at 976-77.
215 Id. at 975 (internal citation omitted).
216 See Thompson v. Lied Animal Shelter, No. 2:08-cv-00513, 2009 U.S. Dist. LEXIS
96383, at *5 (D. Nev. Oct. 14, 2009) (“Traditionally, and in the majority of states today, pets
are considered to be personal property . . . .”).
217 RESTATEMENT (THIRD) OF TORTS: LIABILITY FOR PHYSICAL AND EMOTIONAL HARM § 46
cmt. j (Tentative Draft No. 5, 2007) (“Although there can be real and serious emotional
disturbance in some cases of harm to pets (and chattels with sentimental value), lines, arbitrary at times, that limit recovery for emotional disturbance are necessary.”).
218 Miller v. Peraino, 626 A.2d 637, 638 (Pa. Super. Ct. 1993).
219 Id. at 640.
220 Id.
221 Lachenman v. Stice, 838 N.E.2d 451, 454-55, 468 (Ind. Ct. App. 2005).
222 Id. at 454-55.
214
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terrier was only worth its fair market value, the court precluded evidence of the
dog’s sentimental value to the plaintiff.223 Lastly, the appellate court upheld
the lower court’s refusal to order a protective injunction to protect the plaintiff
and her other pets from further injury by the German shepherd and English
bulldog.224
Nevada also has ugly precedent in animal law. In Armstrong v. Riggi, the
Eighth Judicial District Court allowed a pet guardian, whose two Pomeranians
were killed in the care of the defendant groomer, to recover a mere $100 for
breach of bailment225 for dogs valued at $10,000.226 Under ordinary circumstances, a bailment allows one party to keep legal title to an item, while other
parties have control and possession over the item.227 “When a bailee . . . is
intrusted [sic] with the care and custody of goods, it is his duty to return them
at the end of the bailment, or account for their loss, and show that it happened
without legal negligence upon his part.”228 If a bailee breaches the duty to
return the item, the injured bailor is entitled to damages to compensate for the
damage caused by the breach.229 In Armstrong, the Eighth Judicial District
Court did a great disservice to pet guardians by holding that a pet dog is worth
even less than its market value and has no sentimental or emotional value whatsoever.230 To make matters worse, the Nevada Supreme Court in a unanimous
opinion suggested that the defendant was entitled to receive attorney’s fees and
costs pursuant to NRCP 68.231 This case shows how badly an injured plaintiff
can fare when he or she seeks justice on behalf of an injured or killed pet.
A recent decision by the United States District Court for the District of
Nevada interpreted Nevada law to prohibit nearly any type of claim based on
the death of an animal.232 In Thompson v. Lied Animal Shelter, a veterinary
hospital called Animal Control to pick up a disagreeable puppy.233 Animal
Control called and notified the puppy’s guardian, who was vacationing in Cali223
Id. at 467-68.
Id. at 455, 468.
225 Although the use of a breach of bailment claim shows creative lawyering, it contributes
to the objectification of animals. Ordinarily, bailments include leaving a car at a mechanic’s
shop or dropping clothes off at the dry cleaner. By comparing pets to clothes or cars, the
bailment cause of action fails to recognize the unique emotional and companionship value of
a pet. In the author’s opinion, leaving a pet with a groomer is no more of a bailment than
when a parent entrusts a day care facility to care for a child.
226 Armstrong v. Riggi, 549 P.2d 753, 754 (Nev. 1976).
227 David Favre, Equitable Self-Ownership for Animals, 50 DUKE L.J. 473, 489 (2000).
228 Manhattan Fire & Marine Ins. Co. v. Grand Cent. Garage, 9 P.2d 682, 683 (Nev. 1932).
229 8A AM. JUR. 2D BAILMENTS § 254 (2009) (“[T]he value of property for purposes of
ascertainment of damages is ordinarily determined by reference to its fair market value at the
time of the loss or the expiration of the lease, if it has such a value. If, however, valuing the
bailed property at the time of conversion does not afford the bailor just compensation, the
general rule may not be followed. . . . In the case of property that does not have any fixed
market value, as, for example, household goods or wearing apparel, the measure of damages
generally is the value of the goods to the owner or bailor . . . .”).
230 See Armstrong, 549 P.2d at 754.
231 Id. at 754 & n.1.
232 Thompson v. Lied Animal Shelter, No. 2:08-cv-00513, 2009 U.S. Dist. LEXIS 96383, at
*20 (D. Nev. Oct. 14, 2009).
233 Id. at *2.
224
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fornia, that his dog was being held at the Lied Animal Shelter.234 Various
officials at the shelter assured the plaintiff that he had ten days to pick up his
dog, but, one day later, the shelter euthanized the dog for being “uncooperative.”235 Distraught that “the only thing close to a child he’d ever had”236 was
destroyed, the plaintiff sued the veterinarian’s office and animal shelter for a
series of claims, including intentional and negligent infliction of emotional distress.237 In an opinion granting the defendant’s motion to dismiss, the court
noted that a plaintiff cannot make out a prima facie case of emotional distress
for the death of an animal.238
V. PROPOSALS
FOR
CHANGE
A. The Nevada Legislature Needs to Act
It is essential that the Nevada legislature take serious notice of the need to
improve protection for pets in order to avoid more outrageous decisions like
Armstrong and Thompson. The legislature is the appropriate government
branch to implement changes to animal law because courts “defer to the Legislature to create . . . remed[ies]”239 and legislatures are usually quicker and more
efficient.240 Legislators, who are elected democratically in Nevada, also might
be interested in proposing changes because seventy-five percent of Americans
surveyed indicated they would re-elect government representatives who are
“tough on animal cruelty.”241
1. Six Goals for the Legislature
The legislature needs to address animal mistreatment in order to prevent
unnecessary animal suffering and recognize the important relationships
between pets and their human companions. As a starting point, the following
six goals should be high priorities for future legislative sessions: (1) consistently refer to pet owners as pet guardians; (2) define “pet” and “animal” consistently throughout the Nevada Revised Statues; (3) provide harsher criminal
penalties for animal abusers; (4) further regulate pet stores; (5) improve
enforcement of existing laws; and (6) allow greater compensation for torts
against animals.
First, all language in the Nevada Revised Statutes referring to pet owners
should be amended to read pet guardian in order to emphasize that animals
companions are not chattel. Studies show that changing statutory language to
read pet guardian improves attitudes about pets and promotes more-responsible
234
Id.
Id. at *2-3.
236 Id. at *3.
237 Id. at *4.
238 Id. at *1, 20.
239 Koester v. VCA Animal Hosp., 624 N.W.2d 209, 211 (Mich. Ct. App. 2000).
240 Root, supra note 31, at 448.
241 Sauder, supra note 71, at 16 (citing HSUS: Public Wants Tougher Laws, Enforcement,
Tracking of Animal Abuse, U.S. NEWSWIRE, Mar. 11, 1997).
235
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relationships with pets.242 In one study comparing pet owners to pet guardians, researchers found guardians are significantly more likely to spay or neuter
their pet and are also more likely to register and identify their pets to prevent
loss.243 Although this is a minor semantic change, the underlying message is
important: pets are more than mere property. Humans own chairs, but they are
guardians to those who are unable to care for themselves. By emphasizing that
animals are companions and members of a household, the legislature will send
a message that animals are due respect and their mistreatment will not be
tolerated.
Second, the Nevada Revised Statutes must be amended to consistently
define animals and pets throughout. For abuse and neglect purposes, an animal
should remain a broadly defined term because the depravity of injuring an
animal is the same, whether it is wild animal or a domestic pet. For provisions
that specify pet, the legislature needs to add a broader definition that specifies
that a pet may be any type of animal kept for the primary purpose of companionship. Specifically, Nevada laws need to include provisions for non-traditional pets such as rodents and reptiles in order to protect the growing number
of pet guardians who choose animals other than cats and dogs. This change is
also important to recognize the value of all companion animals, even those that
are not as “cute” or charismatic as dogs and cats. Lastly, it is important to treat
animals consistently because “inconsistencies undermine the form and function
of animal laws, making it difficult for owners, users, and advocates of animals
alike to understand . . . legal boundaries.”244
Third, criminal laws designed to protect animals must include harsher penalties to deter abusers and increase the likelihood of enforcement. So long as
state law punishes animal offenses with miniscule penalties, such as fifteen
days in jail, it lacks the teeth to seriously deter offenders. Because prosecuting
attorneys and judges are not interested in pursuing low-grade misdemeanors,245
all animal-related offenses must include the possibility of felony charges on the
first offense. This increase in punishment is justified considering the strong
correlation between offenders who hurt animals and those who hurt human
beings.
Fourth, the legislature needs to expand state law regulating pet stores. In
addition to criminal penalties for failing to provide food and water pursuant to
NRS § 574.360, Nevada law should monetarily penalize any facility that fails
to provide housing appropriate to an animal’s size- and species-related needs.
For example, failure to provide a dog or cat with nutritious food, clean water,
space to grow and exercise, medical attention, and regular social interaction are
all forms of abuse because they undermine a pet’s quality of life and cause
unnecessary risk to health and wellness.
242 Found. for Interdisciplinary Research & Educ. Promoting Animal Welfare, The Guardian Study: An Examination of the Attitudes, Perceptions and Behaviors of Companion
Animal Guardians and Pet Owners, FIREPAW, http://www.firepaw.org/guardianstudynov.
html (last visited Jan. 5, 2011).
243 Id.
244 Satz, supra note 182, at 72.
245 See supra Part III.C.
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Moreover, the law should require pet stores to provide up-front information about specific care-taking needs for every animal it intends to sell.246 This
information is critical so that soon-to-be pet guardians are better able to make
an informed choice about selecting a pet appropriate to their skill levels and
lifestyles. Ideally, stores should provide potential guardians with the following
specific details about a pet and its needs: (1) species or breed (if known); (2)
life expectancy; (3) size upon maturity; (4) housing requirements; (5) food
requirements; and (6) other information relevant to potential costs or health and
safety concerns for both human beings and pets alike.
An example illuminates why this type of information is critical. In
Nevada, most non-poisonous reptiles are legal.247 A consumer looking for a
new family pet might by wowed by the bright coloring and docile nature of a
baby albino Burmese python. When newly hatched, such pythons weigh less
than a pound and require a ten-gallon tank. However, within a couple of years,
an adult Burmese python might weigh an astonishing 200 pounds and require at
least a 4-foot by 8-foot space.248 Appropriately handling such a large, powerful animal requires skill that a first-time buyer lacks and usually includes a
great deal of expense. Where a guardian cannot handle his or her responsibilities to a pet, the unfortunate results include various forms of mistreatment and
abandonment.249 Although increased information will not altogether eliminate
undesirable pet selection by humans, it is a simple step in the right direction.
Fifth, enforcement needs to be a priority for animal control officers, police
officers, and prosecuting attorneys. Because having an unenforced law is as
effective as having no law, this goal is essential to empowering current Nevada
law and new laws the legislature might consider. It is also critical that executive officers in varying departments open up lines of communication with each
other to better protect animals and their human companions. The legislature
can assist with this goal by clearly demonstrating that animal protection is an
important Nevada policy and by appropriating funds for animal-friendly
initiatives.
Lastly, NRS § 41.740 must be eliminated entirely and replaced with a provision that allows comprehensive civil damages for injury to, or destruction of,
a pet. The legislature needs to include damages for negligent infliction of emotional distress and intentional infliction of emotional distress where a pet is
intentionally injured or killed, or negligently harmed with a guardian present in
order to compensate injured pet guardians fully. Additionally, the legislature
should allow punitive damages for particularly heinous behavior as a way to
punish offenders.
246 Ideally, all facilities that provide humans with animal companions should follow these
guidelines. However, I focus on pet stores because the majority of Nevadans purchase their
pets as opposed to adopting strays off the street or from assorted shelters. See KLEYMAN &
DAHIR, supra note 170, at 13.
247 See NEV. ADMIN. CODE § 503.110(1) (2010) (listing restrictions in importation, transportation, and possession of certain reptile species, excluding venomous or endangered reptiles, crocodiles, and alligators).
248 Bob Clark, The Burmese Python: Making It at Home in Your Home, REPTILES MAGAZINE (1998), available at http://www.bobclark.com/aAN_98.asp.
249 Gerri Hirshey, In Animal Shelters, Reminders of the Economy, N.Y. TIMES, May 11,
2008, at CT1.
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Tort law is particularly important to animal law because efficiency dictates
that losses should fall on the party who can avoid harm most easily.250
Because pet guardians are rarely able to prevent harm from veterinarians, dangerous drivers, or malicious criminals, it is appropriate that the costs of injury
to a pet, both in terms of market value and emotional harm, fall on those who
can prevent damage in the first place.251 Furthermore, tort law promotes compensation for victims and is particularly useful in affirming social values.252
Until the legislature is willing to allow greater damage awards than mere market value for a pet, pet guardians will never receive full compensation. Considering that human guardians often primarily value their pets for affection and
companionship, telling guardians they can “buy a new dog” with the marketvalue damages would be the emotional equivalent of telling the parents of a
deceased child they can simply “make another one.” Guardians also deserve
emotional damages as a way of reaffirming that many in our society value pets
as friends and family members.
B. Addressing Counterarguments
Undoubtedly, many will be unwilling to expend the time and resources
necessary to improve animal law in Nevada. Many critics of animal law would
prefer to see resources used on human concerns rather than on “lesser” life
forms that are arguably of minimal practical usefulness. A similar popular sentiment is that “placement of pets on the same level as humans by compensating
their loss similarly would devalue humanity.”253 These arguments fail to recognize that the inherent value of a living being is not based on practical usefulness, but rather on avoiding needless suffering and respecting the inherent
value of life. For example, modern society recognizes the importance of protecting all human beings, even those who are not fully functional, such as children and the disabled. We do so because we recognize that hurting society’s
most-innocent members severely undermines our humaneness.
A particularly popular criticism of animal law reform is that allowing noneconomic damages will “open the floodgates” and allow fraudulent or fake
claims.254 There are three reasons the “floodgates” rational is flawed. First, it
fails to recognize that juries are more sophisticated than scholars and legal professionals give them credit for being.255 Moreover, courts in other jurisdictions
have already shown that they are quite capable of marking boundaries and reining in juror passions.256 Second, as Professor Livingston, co-director of the
Center for Animal Law, noted, “[t]o refuse to entertain valid claims because
others might be fraudulently brought is an argument of expediency rather than
250
See Livingston, supra note 22, at 831-32.
Squires-Lee, supra note 19, at 1086-87.
252 Id. at 1081.
253 Jason R. Scott, Death to Poochy: A Comparison of Historical and Modern Frustrations
Faced by Owners of Injured or Killed Pet Dogs, 75 UMKC L. REV. 569, 587 (2006).
254 Victor E. Schwartz & Emily J. Laird, Non-Economic Damages in Pet Litigation: The
Serious Need to Preserve a Rational Rule, 33 PEPP. L. REV. 227, 240-41 (2006).
255 Squires-Lee, supra note 19, at 1097-98.
256 Livingston, supra note 22, at 836 n.265.
251
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of justice.”257 Third, the complexity of the litigation process combined with
the expense of having “a day in court” filter out frivolous lawsuits.258
A similar argument is that non-economic damages and massive tort claims
will harm veterinarians, drug manufacturers, and, ultimately, pets themselves.259 The theory is that expensive lawsuits will increase insurance premiums for veterinarians and manufacturers, who, in turn will raise the costs of
goods and services. Then, less people will be able to pay to care for their
pets.260 The problem with this argument is that it is a slippery slope that fails
to recognize that veterinarians and manufacturers of pet products have
extremely low insurance premiums and make substantial profits.261 Even if
increased lawsuits raised premiums, it is unlikely the increase would be unmanageable.262 Furthermore, increased premiums may be passed on to pet guardians because many would be willing to pay extra in order to make sure their pets
are safer.263 As noted above,264 pet guardians are quite agreeable to spending
money on their pets and it is unlikely that a devoted caregiver would stop doing
so because of minor cost increases. Lastly, companies and veterinarians that
provide goods and services exist because of the bond that exists between pet
guardians and animals.265 It is unreasonable for these professionals to reap the
benefits of their business without being held to standards of care and liability
like professionals in other industries.
VI. CONCLUSION
Protecting pets from harm is important not only to pet guardians, but also
for a compassionate and progressive society. To compare a dog to a table
makes some sense on a surface level: both have four legs, both are usually kept
for human enjoyment and use, and both are readily obtainable at fairly low
market value. However, this simplistic comparison fails to recognize that
breaking a table’s leg hurts no one, but breaking a dog’s leg causes the animal
needless pain, undermines humane compassion, and harms pet guardians. Furthermore, although a table can be replaced with an exact replica, all animals by
virtue of their unique DNA and life experiences are irreplaceable. An individ257 Id. (quoting 12 F.F. STONE, LOUISIANA CIVIL LAW TREATISE: TORT DOCTRINE §170, at
217 (1977)).
258 Kristen Stuber Snyder, No Cracks in the Wall: The Standing Barrier and the Need for
Restructuring of Animal Protection Laws, 57 CLEV. ST. L. REV. 137, 150-51 (2009).
259 Schwartz & Laird, supra note 254, at 261-64.
260 Id. at 266.
261 Root, supra note 31, at 445 (emphasizing that veterinarians ‘“typically pay less than
$200 a year for $1 million of malpractice coverage”’ while veterinary medicine is a multibillion dollar industry) (quoting Richard Willing, Under Law, Pets Are Becoming Almost
Human, USA TODAY, Sept. 13, 2000, at 1A).
262 See Livingston, supra note 22, at 840 (arguing that market forces will keep insurance
premiums manageable because businesses pass along the costs of liability to consumers, but
where a provider of goods and services tries to raise prices to cover damage awards, that
provider will be driven from the market).
263 Id. at 833.
264 See supra Part II.B.
265 Root, supra note 31, at 442.
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ual might obtain a similar dog, even of the same breed and appearance; the
personality of a dog cannot be replicated.
Although some states have begun to make important changes to their
animal laws, much work remains. This is particularly true in Nevada, where
criminal law penalizing animal mistreatment is rarely enforced and civil remedies for pet guardians are so outlandishly low that they fail to deter tortfeasors
and compensate victims. In order to implement much-needed change, the legislature needs to take action to implement the six goals specifically laid out in
Part V. These goals must be a priority because pets are “perhaps the most
vulnerable of all sentient beings,”266 and in the words of Mohandas Gandhi,
“The greatness of a nation and its moral progress can be judged by the way its
animals are treated.”267
266
267
Satz, supra note 182, at 80.
CLIVE PHILLIPS, THE WELFARE
OF
ANIMALS: THE SILENT MAJORITY 63 (2009).